Lenz v. Erdmann Corp., 84-5720

• Decision Date: 16 September 1985
• Docket Number: No. 84-5720,84-5720
• Citation: 773 F.2d 62
• Parties: 38 Fair Empl.Prac.Cas. 1561, 38 Empl. Prac. Dec. P 35,515 Otto P. LENZ, Plaintiff-Appellant, v. ERDMANN CORPORATION, Walter Laun, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 62

773 F.2d 62

38 Fair Empl.Prac.Cas. 1561,

38 Empl. Prac. Dec. P 35,515

Otto P. LENZ, Plaintiff-Appellant, v. ERDMANN CORPORATION, Walter Laun, Defendants-Appellees.

No. 84-5720.

United States Court of Appeals Sixth Circuit.

Argued May 8, 1985.

Decided Sept. 16, 1985.

Donna N. Clements-Gaddie, argued, Louisville, Ky., for plaintiff-appellant.

Jon L. Fleischaker, Jo Ann Dale, argued, Wyatt, Tarrant & Combs, Louisville, Ky., for defendants-appellees.

Before JONES and KRUPANSKY, Circuit Judges, and EDWARDS, Senior Circuit Judge.

PER CURIAM.

Plaintiff-Appellant Otto Lenz appeals from the district court's entry of summary judgment in favor of the defendants-appellees, his former employer Erdmann Corporation and his former supervisor Walter Laun, in this suit brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621 et seq. We find that a genuine question of fact remains concerning whether Erdmann's reason for discharging Lenz was a pretext, and consequently, we reverse the district court.

Lenz was 55 years old at the time of his discharge from Erdmann. For over seven years, Lenz had been an inside sales employee of Erdmann. The position generally required working hours from 8 a.m. to 5 p.m. Monday through Friday. In late December 1982, defendant Laun, who was Lenz's direct supervisor and a part owner of Erdmann, circulated a memorandum to all sales personnel directing them to appear for work on Saturday, January 8, 1983, to move records. On Thursday, January 6, Lenz informed Laun that he would not report to work on Saturday, January 8. Laun asked for a reason. Lenz replied that he needed to attend to personal business and declined to elaborate. Laun told Lenz that his reason was not good enough and the brief exchange concluded. Lenz did not appear for work on January 8. Laun demanded an explanation on Monday. Lenz again told Laun that he had taken care of some personal business on Saturday. He also raised several of his policy disagreements with management. This conversation concluded with Laun firing Lenz. Both Lenz and Laun testified that at that time Laun stated he was firing Lenz because of Lenz's "bad attitude."

Prior to filing this action, Lenz properly exhausted his administrative remedies. He filed the complaint in this action on January 3, 1984. On February 7, both Lenz and Laun were deposed. The next day, February 8, Lenz sent a letter to defendants' counsel requesting document production in response to eight questions. After six weeks of silence from Erdmann and Laun, a second letter on March 28 renewed this request. On March 29, counsel for the defendants replied that his co-counsel was on sick leave and he "was not available." He requested Lenz's counsel's patience. On April 23, 1984 the defendants' co-counsel informed Lenz's counsel that she had returned to work and that what documents existed were available for inspection. The parties agreed that Lenz's requests raising issues on which no documents existed would be treated as interrogatories. Defendants answered the interrogatories on May 16, 1984, and simultaneously filed a motion for summary judgment. Lenz answered in part by stating that the deposition of Daniel Demoise, Erdmann's president, was scheduled for June 15, 1984, and that other persons concerned with the case needed to be heard. On July 3, 1984, the district court granted summary judgment to the defendants on the ground that, assuming Lenz had stated a prima facie case of age discrimination, Erdmann had stated a non-discriminatory reason for his discharge and Lenz had not produced evidence of pretext. On July 17, Lenz filed the deposition testimony of Demoise. This appeal followed.

At the summary judgment stage of a lawsuit the moving parties have the burden of showing conclusively that no genuine issue of material fact exists. Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.1979). To determine whether Erdmann and Laun met this burden the district court must evaluate the evidence and all inferences to be drawn therefrom in the light most favorable to the non-moving party, here Lenz. Id. When we review the record in light of this test, it is apparent that entering summary judgment in favor of Erdmann and Laun was improper.

First, the district court assumed, without deciding, that Lenz had created a genuine issue of material fact on each of the elements of a prima facie case of age discrimination. Therefore, it did not grant the defendants summary judgment on this ground. This was correct because at least a genuine issue of material fact exists on each of the elements of a prima facie case as established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Lenz was unquestionably in the protected class at the time of his discharge. The testimony of Erdmann management indicates that he was qualified for the position from which he was discharged. The defendants' reply to Lenz's interrogatories would support a finding that he was replaced by a younger person, Anthony Elliott, age 30. See Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 69 (6th Cir.1982). On remand, summary judgment on the ground that no genuine issue has been raised concerning Lenz's prima facie case is not likely to be appropriate.

Second, the district court was correct that Erdmann and Laun articulated non-discriminatory, although varying, reasons for discharging Lenz: either, as the district court found, because he refused to work when directed to do so, or because of his "bad attitude."

Third, the district court erred in its holding that Lenz had not raised a genuine question of fact concerning the material issue of whether Erdmann's and Laun's articulated reasons were pretexts disguising age discrimination. The district court recognized that summary judgment on issues of intent and motive is rarely appropriate. It did not, however, view the evidence before it in the light most favorable to Lenz. Lenz's theory of pretext was that Erdmann was in financial difficulty, to which it responded in part by attempting to rid itself of older, higher salaried employees. Lenz was in the protected class and claims to have been the highest paid employee other than Erdmann owners. Laun testified by deposition that approximately five months before he discharged Lenz, Erdmann had cut pay by 20% and had begun scheduling employees for four days a week of work. Lenz testified as follows:

Erdmann was having difficult times, as was the whole economy at that particular time, and Erdmann was in a position where it--the main function that Erdmann has to offer its customers is service, and if you don't have enough time or enough people to service the accounts, it's going to reflect in decreased business, which was a situation that Erdmann found itself in at that particular time.

The district court's memorandum does not consider this evidence.

The evidence before the district court reveals that Lenz had a satisfactory work record. Laun testified that Saturday work, even for the annual inventory, was neither an express nor an implied condition of employment for Erdmann's staff. Laun also acknowledged that Lenz had frequently worked Saturdays on his own initiative during his seven years with Erdmann, that Lenz was not frequently absent or late, and did not leave work early. Additionally, according to Laun, Lenz maintained good relationships with his customers. The district court is silent regarding this material evidence.

Lenz also alleges a pattern of discrimination against older employees. Erdmann requested that Hugh Eades retire early, according to Lenz, but because of Eades' union seniority the company stopped short of firing him. Lenz was not a union member. Helen Evans allegedly was a senior Erdmann employee who refused early retirement and was fired. As the district court noted, Evans sued Erdmann in state court. Her action was dismissed but she did not appeal. The district court concludes that these two incidents are "isolated" and "unrelated." Viewing the alleged treatment of Eades and Evans in the light most favorable to Lenz, these incidents support his theory of disparate treatment of older employees at a time of financial difficulty for Erdmann.

Further, the district court erred when it stated that Lenz's own deposition testimony supported the validity of the defendants' articulated reasons for discharging him. Viewed in the light most favorable to Lenz, his statements only reveal that he was aware of Erdmann's and Laun's pretexts. The nature of a pretext is that its true motivation is unstated.

Viewed in the light most favorable to Lenz, the evidence before the district court reveals that Erdmann was in a time of financial difficulty. As a partial owner of Erdmann, Laun stood to gain or lose as the company's fortunes rose or fell. Lenz was a high-paid member of the protected class, whose work performance was at least satisfactory. Erdmann had acted against two other employees who were members of the protected class. Lenz raised a genuine question of fact concerning whether the defendants' articulated reasons for discharging him were pretexts for age discrimination. Entry of summary judgment in favor of the defendants was improper.

Because Lenz had created a genuine question of material fact concerning whether the defendants' articulated reasons for his discharge were pretexts for age discrimination, we REVERSE the district court's entry of summary judgment and REMAND for further proceedings not inconsistent with this opinion.

KRUPANSKY, Circuit Judge, dissenting.

In view of the disparities between existing legal precedent applicable to the facts of this case as disclosed by the record and the conclusions articulated by the majority opinion, I am prompted to respectfully dissent.

In Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 69 (6th Cir.1982), the court defined the burden of proof placed upon a plaintiff in a Title VII discrimination case...